Why Habeas Corpus?

The Decision To Approach The Courts

Petitioners approached the High Court after exhausting police and political contacts. The families initially restricted their inquiries solely to their informal police contacts because they feared that the police would kill the detainee if they filed a written police complaint or approached judicial or political authorities. Mohinder Singh, for example, approached forty-three politicians and policemen about the disappearance of his son Jagraj Singh before deciding to file a case. Jagraj was a student activist and led many protests in Chandigarh. In an attempt to quell his activity, the Punjab Police registered fifteen cases against him from 1985 until his abduction. The courts, however, acquitted Jagraj of all charges. The police abducted Jagraj in January 1995, leaving behind his wife and two children. After Jagraj’s abduction, Mohinder Singh both vigorously pursued contacts with politicians and his court case, expressing resignation and disgust at the lack of help and the protracted litigation:

Why doesn’t the judiciary take any action against them? These judge-folks, they know everything. They listen to the pain-filled person and can tell his honesty. Yet still they are helpless ... it’s been six and one-half years since I’ve been pushed around, and still I have no relief.[56]

Police also extorted money, harassed and detained other family members, occupied their homes, and registered false cases against them. For example, the police detained Sukhwinder Kaur’s extended family for at least eight months, and seven family members eventually “disappeared.” Giani Anokh Singh, her father, described how the police released part of her family after the police extorted money from them. Sukhwinder Kaur said she paid 7000 rupees to Deputy Superintendent of Police (DSP) Paramjit Singh of Batala Station; he released only five of twelve family members. Although sometimes extortion helped, often influence and money could not secure the release of family members.

Families turned to the courts after the police harassment receded; however, because of the passage of time and their complete lack of knowledge about the whereabouts of the disappeared, they often doubted whether their family member was still alive. The Amritsar police abducted Jaswinder Singh’s brother, father, and grandfather.[57] As a result, Jaswinder told me that he went into hiding for two years with his mother and sister. Finally, they returned home, restructured their lives, and performed his sister’s marriage in 1995. Only then did his family file a petition.

Other families filed a petition for the following reasons: the relative security brought by the coming of the Akali government in 1997; advice from family members abroad; and heightened awareness that such a remedy existed because of the media’s increased coverage of habeas corpus petitions. Mohinder Kaur, partially blind and with a lame hand, did not know where the High Court was located, or what it meant to file a habeas corpus petition. She filed a petition after hearing in the media and from other people that it was one way to find out what had happened to her son.

Choosing The High Court

Having made the decision to file a case, families spurned the lower courts and used the writ of habeas corpus to approach the High Court. They chose their lawyers based on advice from political leaders, human rights activists, and friends. Sometimes district court lawyers who had represented family members in false cases in the lower courts recommended a High Court lawyer. Afflicted families perceived that the corruption, police harassment, and delay in proceedings would make justice impossible in the lower courts. Many justices of the High Court seconded their opinions.[58]

Criminal cases in the lower courts follow a lengthy procedure involving three stages: pre-summoning, pre-charge, and the actual trial. Witnesses often have to testify three times. The petitioner has to be present at every date of the hearings, or the magistrate can dismiss the case against the accused.[59] In order to initiate proceedings, the plaintiff must first file the complaint with the magistrate.[60] Under Section 202 of the CCP, the magistrate can postpone proceedings until he, a police official, or other person designated by him investigates the complaint and examines the witnesses. Proceedings then commence under Chapter 16 of the Code. The magistrate issues a summons to the accused. If the police are also investigating the matter, the magistrate may stay the proceedings until the police have completed their investigation.[61] Next, the specific charge is formulated; this may involve recalling witnesses several times if any portion of the charge is changed.[62] Police officers often make several attempts to reduce the severity of the charges. Only then does the trial begin.

This procedure of the lower courts increased the chances that ultimately families would drain their financial resources and the police would win over witnesses by constant pressure. Police officials prolonged the procedure with delay tactics: often, the accused would claim he or she had to go away for a job assignment, files would be lost, and investigations would be protracted.[63]

Delay increased the opportunity for corruption. Brjinder S. Sodhi, a lawyer in the district courts of Patiala, claimed that police would go to the judges’ houses to obtain remand for someone who was detained, or to influence them in a case. The judiciary of the lower courts depended on the police for security guards, “so there’s a pro-police attitude.”[64] According to the report of the sessions judge in Hazura Singh v. Punjab, the district magistrate “admitted to not having obtained the signatures or thumb impression of Bagicha Singh in proof of his having been actually produced before her.”[65] This requirement is intended to ensure that detainees are produced before magistrates, who can evaluate the detainee for any sign of physical torture. Failure to procure such signatures often implies that the detainee is unwell or has been killed by the police.

Problems As Cases Progressed And The Decision To Withdraw

Police harassment and evidentiary problems plagued petitioners’ cases. The petitioners’ inability to procure supporting affidavits highlights the fear that witnesses felt about giving statements. Petitioners filed habeas corpus petitions filled with allegations of police harassment, including attempted murders, additional disappearances, detainment and torture, and false cases. The police repeatedly detained my interviewee Hazura Singh and his brothers to deter them from pursuing the case of the disappearance of Hazura Singh’s son, Bagicha Singh. In March 1993, three days after his fourth child and only son was born, Bagicha Singh was taken into custody and tortured severely. According to the police, Bagicha Singh then escaped. The family met Bagicha Singh in custody several times. A court clerk told Hazura Singh that on one of the days when Bagicha Singh was produced before a magistrate, he had been severely tortured and could barely walk. He begged the magistrate not to give the police remand because the police planned to kill him. The magistrate gave the police remand, and Bagicha Singh disappeared the next day. Hazura Singh filed a habeas corpus petition, and the police harassed him and his family. He recounted:

They picked up my brothers. Once they kept me three days and once twelve days. They gave me water in the same bowl they had me use for my bowel movements. When they took me for three days, I was very sick. I was about to die ....I couldn’t walk or talk. They used to just try to scare me. They tried to force me to put my thumbprint on some papers. I said I may die, but I will not put my thumbprint. Go ahead and put it while I am dead, but not while I am alive.[66]

Justice R. L. Anand of the High Court admitted to the use of police harassment: “Supposing A is wanted ....Women are brought [to the police station], old people are brought, sometimes their household articles are brought, just to put pressure on Person A.”[67]

Despite the provision requiring suspension of police officers who have been charged with abuses regarding fundamental rights, many policemen retained their posts. For example, the Supreme Court ordered the suspension of the accused in the case of Khalra’s abduction. Paramjit Kaur, Khalra’s wife, however, said that four of the accused had returned to Tarn Taran, where she lives.[68] In another example, the policeman who abducted Ram Singh’s brother still had jurisdiction over his village and harassed his family whenever they needed government permits for tractors or other agricultural equipment:

For an ordinary person, it’s very hard to get justice from here. He doesn’t even know where Chandigarh is. It takes money to go, money to come back. If senior lawyers get harassed, what’s going to happen to us? Who will protect us? The police will stick with the police. Hindustan [India] is a wax nose - whoever has power can turn it.[69]

Many petitioners claimed that they had filed criminal complaints, or First Information Reports (FIRs), when their sons disappeared. However, when they later had to pinpoint the report in the police register, they could not find it. After the police abducted his brother, Ram Singh and two friends went to two police stations to file criminal complaints. He described his experience in court:

Even the complaints that we filed, they didn’t give us a copy. They would just say that we recorded it. They didn’t write in the roznamcha [required daily police diary]. They would write it in their duplicate register. I filed one in Malerkotla. I filed one in Dhuri .... I later looked through it for an hour and didn’t find anything. It would’ve been there if they had written it.[70]

The National Police Commission (NPC) confirmed that policemen often chose not to register complaints made at the police station, especially when people made allegations against the police.[71] The NPC also reported that when policemen did file a FIR, which can be introduced in evidence, they recorded it “in a made up manner after taking advice from persons with experience in procedural law,” instead of recording it at the moment of complaint or investigation.[72]

The FIRs used by police to claim the disappeared was a criminal often listed the criminals as unidentified persons. The sessions judge reported in Hazura Singh’s case, Hazura Singh v. Punjab: “It is important to notice in this connection that in case FIR No. 73 of Police Station, Garhshankar and FIR No. 60 dated 5.8.92 of police station Sadar, Hoshiarpur, Bagicha Singh was not named as an accused and the crimes of those cases were stated to have been committed by unidentified persons.”[73] This allowed policemen to use these FIRs against any person. The police would accuse the victim of criminality and explain the victim’s disappearance with the story, for example, that the victim had escaped while going for recovery of weapons with the police.

Besides these evidentiary and police harassment issues, petitioners had to deal with dwindling resources, the difficulty of attending court hearings, the delay in proceedings, which in some instances stretched cases beyond six years, and a lack of knowledge of the judicial system. Very few petitioners attended every court hearing in Chandigarh, especially because most hearings consisted of merely scheduling another date. Many petitioners I interviewed did not know their case was in Chandigarh, and did not know their cases had been dismissed. Since proceedings are in English, a language most do not know, petitioners depended on their lawyers or other people to keep them informed about their cases.

Surjit Kaur’s experiences highlight the unique burden that women bore who chose to pursue cases. Her husband, Prem Singh, used to handle the logistics of their case regarding the disappearance of their son Satnam. After the onset of depression and mental illness, Prem Singh abandoned his home and discontinued working on the case. Surjit Kaur expressed frustration at her lack of knowledge regarding the case. Until I spoke to her, her lawyer had not informed her that a second inquiry was proceeding in her son’s case because the medical report showed information indicating that he was shot at point-blank range. “I just sit there. I don’t even know when they call the case. He [the lawyer] takes another date, and I have no idea .... Prem Singh used to go to the courts.”[74] Because of women’s need for financial support from their relatives, the duties of raising children, and women’s role in managing the household in the absence of a husband or son, women tended to rely on their male relatives to handle cases, and some had to accept what those relatives decided regarding cases. Surjit Kaur expanded on her experience in court: “It’s not easy for women. I feel shame. They say: to one who hasn’t seen your back, you’ve shown your face. I say that we should be finished with this. My will is broken.”[75]

Seeing the justice system as their last hope, many people turned to it for some degree of relief. Amreek Singh, a journalist and human rights activist with the Committee for Coordination of Disappearances in Punjab (CCDP), explained his involvement in fieldwork documenting disappearances:

I have been very clear since day one that not in one single case will we get complete justice. We’ll get to one stage, but we won’t make it to the next. But still, this is also part of the fight. If we get one case to any stage, it’s still a victory. Even though they - the police and judiciary - have stalled the process, tangled up the people and compromised many of them, it’s still a victory and it’s creating some degree of accountability for Punjab police. They are still taken to task to some extent.[76]

Although none of the case documents explained why petitioners withdrew cases, I spoke to three petitioners who had withdrawn cases. For example, Sukhwinder Kaur, whose seven family members disappeared, withdrew the case under police pressure. She wanted to protect the young children in the family. Bhupinder Singh, the Deputy Superintendent of Police (DSP) and an accused in the case, took Sukhwinder Kaur in a police car to the High Court and accompanied her as she signed to withdraw his name from her case and eventually to withdraw the case in general. Harjinder S. Dhillon’s family said that in exchange for dropping their case, the police promised to return the property that had been seized with their brother’s disappearance. However, the police did not return the promised goods.

Families Who Chose Not To File A Petition

Some families chose not to file a petition for reasons related to the problems petitioners faced during the case, such as: harassment, fear for other family members, an inability to procure witnesses, lack of knowledge, lack of resources, the desire to hold on to jobs with the police, and the belief that filing a case would be ineffective. At least four interviewees did not know that the High Court existed.

Fear for the safety of other family members dominated decisions not to file a case. Baljinder Kaur described the years of police harassment that prevented her from filing a case, despite encouragement from various community members. The police detained her family after they killed her husband, Kiranpal Singh, before their eyes. When she returned home after the police released her, they had vandalized her two-bedroom apartment. Until 1998 or 1999, the police visited her home continuously, threatening to kill her and her family if she filed a case:

They kept on coming continuously. We never knew what dawn they would come, what dusk. I was reunited with my oldest daughter after two years. She was a witness, too. My daughter didn’t tell us where she had been kept by the police those two years, saying she herself didn’t know.[77]

High Court lawyer R. S. Bains affirmed that eventually human rights lawyers started advising people not to file habeas corpus petitions because it was “a remedy that gave more pain to people than relief.”[78] People emphasized their desire to maintain what they had, instead of losing more while they chased justice.